C/FA/1178/2021 JUDGMENT DATED: 14/12/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1178 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIRZAR S. DESAI
==========================================================
1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
MAHESHWARI (MANGALIYA) GOVIND VALJI
Versus
RAMESH SAMJI DANGAR
==========================================================
Appearance:
SHIVANG A THACKER(7424) for the Appellant(s) No. 1
MR YOGI K GADHIA(5913) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1,2
==========================================================
CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 14/12/2022
ORAL JUDGMENT
1. By way of this First Appeal, the appellant has challenged the judgment and award dated 03.07.2019 by the M.A.C.T Aux., Page 1 of 7 Downloaded on : Sat Dec 24 03:17:58 IST 2022 C/FA/1178/2021 JUDGMENT DATED: 14/12/2022 Kutch at Bhuj in M.A.C.P. No. 104 of 2004 whereby the Tribunal allowed the claim petition of the appellant and awarded compensation of Rs. 3,00,000/-with 9 % interest from the date of application till date of his realization. However, the present appeal is preferred for a limited purpose as the Tribunal has not thought it fit to grant compensation to the tune of Rs. 30,000/- for medicines and special diet, Rs. 10,000/- for attendant charges, Rs. 30,000/- for transportation charges from Bhuj to Ahmedabad, Rs. 30,000/- for financial loss and loss of comfort to the parents for attending the appellant and thereby, the present appellant has prayed for an additional sum of Rs.1,00,000/- over and above the sum of Rs. 3,00,000/- which was awarded by way of compensation.
2. The claim of the present appellant before the Tribunal was as under:-
2.1 That On 09/01/2004 at about 8-30 a.m., the minor applicant namely Govind was crossing the road near to Kukma Pond, at that time opponent No.1 along with Page 2 of 7 Downloaded on : Sat Dec 24 03:17:58 IST 2022 C/FA/1178/2021 JUDGMENT DATED: 14/12/2022 Jeep No. GJ-12-K-8115 came in rash and negligent manner and with full speed and dashed his Jeep with the minor applicant and thereby caused accident in which applicant sustained serious injuries. It is further stated that the applicant has been permanently and partially disabled because of the injuries sustained by him in the said accident which took place because of rash and negligent driving of opponent No.1 i.e. driver of Jeep bearing registration No. GJ-12-K-8115. Opponent No.2 and 3 are the owner and insurer of the said vehicle Jeep respectively. Therefore, the opponents are liable to pay the amount of compensation to the applicant with costs and interest.
3. The Tribunal considered the aforesaid aspect and awarded compensation of Rs. 3,00,000/- with 9% interest from the date of application till realization of the amount alongwith proportionate costs of the application. However, as the appellant was aggrieved that the amount towards medicine and special diet, attendant charges and transportation charges as Page 3 of 7 Downloaded on : Sat Dec 24 03:17:58 IST 2022 C/FA/1178/2021 JUDGMENT DATED: 14/12/2022 well as financial loss and loss of comfort to the parents for attending the appellant were not considered by the Tribunal seeking an enhancement of the compensation by Rs. 1,00,000/-, the present appeal is preferred.
4. Learned advocate Mr. Shivang Thacker appearing for the appellant by relying the upon the judgment in case of Malikarjun V/s Divisional Manager, National Insurance Company Ltd. and Anr. reported in (2014) 14 SCC 396 and more particularly by relying upon paragraph no. 12 of the aforesaid judgment submitted that the Tribunal has only granted future loss of income. However, the Tribunal has granted compensation on all other heads in addition to the actual expenditure for the treatment, attendant etc. and therefore, he submitted that an additional compensation of Rs. 1,00,000/- which is based on the actual expenses incurred by the present appellant may be allowed by directing the Insurance Company to grant the amount as prayed for.
5. Learned advocate Mr. Yogi K. Gadhia appearing for the Page 4 of 7 Downloaded on : Sat Dec 24 03:17:58 IST 2022 C/FA/1178/2021 JUDGMENT DATED: 14/12/2022 Insurance Company vehemently opposed the present appeal and submitted that the Tribunal has after taking into consideration all the evidence on record granted the compensation of Rs. 3,00,000/- with 9% interest and therefore, no interference in the award passed by the Tribunal is required.
6. I have learned advocates for the respective parties. Learned advocate Mr. Thacker for the appellant at the outset submitted that this Court may exercise the discretion and reduce the amount suitably, if this Court deems that the amount claimed by the appellant is exaggerated amount.
7. The Hon'ble Supreme Court in case of Malikarjun V/s Divisional Manager, Oriental Insurance Company Ltd. And Anr. in paragraphs no. 12 and 13 observed as under:-
"12. Though it is difficult to have an accurate assessment of the compensation in the case of children suffering disability on account of a motor vehicle accident, having regard to the relevant factors, precedents and the approach of various High Courts, we are of the view that the appropriate compensation on all other heads in addition to the actual expenditure for treatment, attendant, etc., should be, if the disability is above 10% and up to 30% to the whole body, Rs.3 lakhs; up to 60%, Rs.4 lakhs; up to 90%, Rs.5 lakhs and above 90%, it should be Rs.6 lakhs. For permanent disability upto 10%, it should be Page 5 of 7 Downloaded on : Sat Dec 24 03:17:58 IST 2022 C/FA/1178/2021 JUDGMENT DATED: 14/12/2022 Rs.1 lakh, unless there are exceptional circumstances to take different yardstick.
13. In the instant case, the disability is to the tune of 18%. The appellant had a longer period of hospitalization for about two months causing also inconvenience and loss of earning to the parents. The appellant, hence, would be entitled to get the compensation as follows:
Head Compensation
amount
Pain and suffering already undergone and to be Rs. 3,00,000/-
suffered in future, mental and physical shock, hardship, inconvenience, and discomforts, etc. and loss of amenities in life on account of permanent disability.
Discomfort, inconvenience and loss of earnings to Rs. 25,000/- the parents during the period of hospitalisation. Medical and incidental expenses during the period Rs.25,000/- of hospitalisation for 58 days.
Future medical expenses for correction of the of Rs. 25,000/- the mal union of fracture and incidental expenses for such treatment.Total Rs.3,75,000/-
8. Considering the fact that in the present case also the appellant is a minor and therefore, the case of the present appellant is squarely covered by the aforesaid judgment in case of Malikarjun.
9. In opinion of this Court, interest of justice would be served, if following amount as additional amount towards compensation is awarded to the present appellant by modifying the aforesaid Page 6 of 7 Downloaded on : Sat Dec 24 03:17:58 IST 2022 C/FA/1178/2021 JUDGMENT DATED: 14/12/2022 award suitably.
Head Amount
Medical expenses and special diet Rs. 30,000/-
Attendant charges Rs. 10,000/-
Financial loss and loss of comfort to the Rs. 30,000/- parents for attending
Transportation charges Rs. 25,000/-
Total Rs. 95,000/-
10. The respondent Insurance Company is directed to deposit the aforesaid amount within a period of 12 weeks from today with 6 % interest from the date of filing of claim application before the Tribunal.
11. With the aforesaid direction, the present appeal is partly allowed. Rule is made absolute to the aforesaid extent. Direct service is permitted.
(NIRZAR S. DESAI,J) VARSHA DESAI Page 7 of 7 Downloaded on : Sat Dec 24 03:17:58 IST 2022